BOARD DATE:	  1 April 2014

		DOCKET NUMBER:  AR20130013603 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he was commended by his previous commander but when a new commander assumed command everything changed and everyone wanted to transfer to combat assignments.  He goes on to state that over the next year his section received the most nonjudicial punishments (NJP).  Additionally, he received a hardship call from his family through the Red Cross and his commander denied him travel time to go to see his family.  He was told to use the weekend and report back on time.  He was met on Monday with an NJP for not being in starched fatigues even though he had orders from a doctor indicating that he was getting rashes from the starch.  He also states that a few months later he was celebrating the birth of his first child and he was absent without leave (AWOL) for 3 days and after 3 months he was denied the opportunity to go to see his family so he got drunk and went AWOL for several months until he was apprehended by civil authorities.  He was forced to accept discharge under the threat of being court-martialed.  He continues by stating that he was never counseled on any options to correct the situation and the unjust treatment should be expunged from his records and he should be given a general discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 27 November 1973, the applicant enlisted in the Regular Army in Oklahoma City, Oklahoma for a period of 3 years, training as a power generator equipment operator/maintainer, and assignment to Fort Sill, Oklahoma.  His records indicate that he was single with no dependents at the time of enlistment.  He completed basic training at Fort Leonard Wood, Missouri and advanced individual training at Fort Belvoir, Virginia before being transferred to Fort Sill for his first and only assignment on 10 May 1974. 

3.  On 29 July 1974, NJP was imposed against the applicant for being AWOL from 9 to 16 July 1974.  

4.  On 7 October 1974, NJP was imposed against the applicant for being AWOL from 6 to 18 September 1974.

5.  On 4 November 1974, he again went AWOL and remained absent until he surrendered to military authorities at Fort Sill on 17 November 1974.

6.  The applicant went AWOL on 2 December 1974 and remained absent in a desertion status until he was apprehended by civil authorities in Texas on 27 May 1975 and returned to military control at Fort Hood, Texas on 10 June 1975, where charges were preferred against him.

7.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Muskogee, Oklahoma on 2 February 1984.  However, his records do contain a duly-authenticated DD Form 214 which shows the applicant was discharged, on 5 August 1975, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with 
an Undesirable Discharge Certificate.  He completed 1 year and 29 days of active service and he had approximately 223 days of lost time due to being AWOL.  He was also advised of the procedures for applying to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

8.  There is no evidence in the available records to show that he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights and that the type of discharge directed and the reasons were appropriate under the circumstances.


2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he would have voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he would have admitted guilt to the charges against him.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the extensive length of his multiple absences, the available evidence, and his otherwise undistinguished record of service.  Accordingly, his service does not rise to the level of a general discharge.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X___  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130013603



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ABCMR Record of Proceedings (cont)                                         AR20130013603



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